Davidson v. Peticolas

Walker, J. The exceptions to the rulings of the district court are as follows: First—The court erred in overruling the exceptions of defendants and demurrer to the plaintiff’s petition. Second—The court erred in admitting as evidence the bill of exchange set out in the bill of exceptions. Third—The court erred in admitting as evidence the certificate-of the Secretary of State, set out in the bill of exceptions. Fourth—The court erred in giving judgment upon the pleadings and evidence against the defendant Davidson, administrator of Z. 0. Wheeler’s estate. Fifth—The court erred in every ruling made, and judgment rendered against the defendant, Quincy Davidson, administrator, etc. In settling the question as to what parties shall fix the character of a negotiable instrument, whether it be a contract between, merchant and merchant, their factors and agents, we. are assisted. [34] by the case of Black v. Calloway, 30 Texas, 238. The court there say: “No drawee e-ver becomes a party to such a contract until he accepts. Until then the contract exists between the drawer and the payee exclusively, and it may well admit of serious doubt if the two latter are not the parties to the bill, required by the statute to be merchant and merchant, in order to give a mercantile character to the paper. We do not intend to be understood as deciding this point, its decision not being necessary to a disposal of ■the case.” Our learned predecessors have left it for us to say, and we have no hesitation in so doing, that it-is the drawer and payee of a bill of exchange who are to give it its distinctive character, and if ■they be not “merchant and merchant,” the paper is not of that character which would enable the holder to fix the liability of the drawer and indorser by protest and notice, in accordance with the ■terms of the fourth section of the act of March 29, 1848. The sixth section of the act is as follows, (Article 99, Oldham & White’s Digest): “Three days of grace shall be allowed on all bills ©f exchange and promissory notes, assignable and negotiable by law; provided, that the fourth, fifth and sixth sections of this act shall extend ■only to contracts between merchant and merchant, their factors and agents.” This was the law in force at the time of the maturity of the bill herein sued on, but has been since repealed by the first section of the act of eleventh of January, 1862. We think the obvious construction of the sixth section of the act of 1848, refers the word “ contracts ” in the latter clause to the words “ bills of exchange ” in the fourth section, and in the first clause of the sixth section; that such bills and notes are the only contracts referred to, and that it was not intended to embrace indorsements upon bills or notes, which were themselves not contracts between merchant and mer [35] chant; and the fact that the drawee, the payee and the indorsers of the hill may have been merchants, does not change the original character of the paper. Every indorsement of a bill of exchange implies a new contract between the indorser and the subsequent holders; and, although all indorsers may be sued together with the drawers, yet each is liable on his own express or implied contract. This court will take judicial notice that there was a term of the district court begun and holden in the county of Victoria, on the third Monday in February, 1861, and another on the third Monday in August, 1861, to either of which terms this suit might have been brought, for the act suspending all laws for the collection of debts and liabilities on bonds, promissory notes, bills of exchange, etc., did not pass until the seventh day of December, 1861. (See Griffith v. Gary, 31 Texas R., 163.) Here the court say, unless the liability of an indorser has been fixed by bringing suit against the maker, as required by the first section of the act of March 20. 1848, he cannot be made liable. (See also Paschal’s Digest, art. 229, note 290.) This effectually disposes of this case. But two other questions of importance arise in this case : If is claimed by counsel for the appellee that the statute referred to, requiring the suit to be brought to the first term, etc., was a statute of limitation, and has been suspended by the forty-third section of the twelfth article of the Constitution. We do not think, however, that this can be properly urged. The statute, like the law merchant, required a certain thing to be done to fix the liability, without which the holder of a bill could not recover either against the indorser or drawer. It imposed no limitation upon the time within which an established right might be enforced. It prescribed that which was necessary to do before the right itself was established, and, therefore, this case is not affected by the act of January 13, 1862, by the ordinance of 1866, nor by the Constitution of 1869. (See Pace v. Hollaman, 31 Texas, 158.) [36] The certificate of the Secretary of the State of Texas to the law of Louisiana, authorizing notaries to act by deputy, was insufficient. He should have stated in his certificate that what he certified to was found in a book, “ purporting to be printed under the authority of that State.” The last error we shall notice is in the judgment of the court, wherein the judgment is given for coin. The bill sued on did not call for payment in coin. It would have been better that the court should have followed the case of Flournoy, et al., v. Healy, 31 Texas, 590, and thereby have saved us the trouble of commenting on this error. The parties having waived a jury in the district court, it is the judgment of this court that this cause be reversed and dismissed. Reversed and dismissed.